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Smith v. Orscheln Farm And Home, L.L.C.

United States District Court, E.D. Oklahoma

March 30, 2018

1. DAVID G. SMITH, Plaintiff,


          James H. Payne, United States District Judge Eastern District of Oklahoma.

         Before the Court is Defendant Orscheln Farm & Home, L.L.C.'s (“Orscheln”) 12(b)(6) Motion to Dismiss (Dkt. 4). Plaintiff David G. Smith (“Plaintiff”) has filed a Response in opposition (Dkt. 9), and Orscheln has filed a Reply (Dkt. 10). After consideration of the briefs, and for the reasons stated below, Orscheln's Motion to Dismiss is GRANTED.


         According to the Petition (Dkt. 2-2) on April 11, 2014, Plaintiff was driving his truck and was pulled over by Wagoner County Police in Wagoner County, near Orscheln's store. (Dkt. 2-2, ¶ 4). The officer told Plaintiff he pulled him over because his license plate was partially obscured. (Id. ¶ 5). The officer began to question Plaintiff about some trailer wheels and tires in Plaintiff's truck. (Id.). The officer then asked the manager of Orscheln's store, Defendant Jeffrey Benedict (“Benedict”) to come out to the traffic stop location and look at the tires. (Id. ¶ 6). Benedict identified the tires and wheels as belonging to Orsheln's store “without a doubt.” (Id. ¶ 7). The officer then placed Plaintiff under arrest. (Id. ¶ 8).

         Benedict then gave an official written statement to the Wagoner Police Department, in which he reiterated his prior statement that the tires in Plaintiff's truck bed were the store's tires “without a doubt.” (Id. ¶ 9). Plaintiff alleges these statements from Benedict caused the officer to charge Plaintiff with the felony crime of “Larceny from a retailer” and the District Attorney to charge and prosecute Plaintiff. (Id. ¶¶ 10, 12).[1]

         Plaintiff was released from jail on bond later that day. (Id. ¶ 15; Dkt. 4-2 (Appearance Bond)). The Wagoner County District Court held a preliminary hearing on August 12, 2015, at which Benedict testified he had identified the tires in Plaintiff's truck as belonging to Orscheln's store. (Dkt. 2-2, ¶ 17). At the conclusion of the preliminary hearing, Plaintiff's counsel demurred to the evidence, arguing the prosecution had been unable to prove the tires in Plaintiff's possession were stolen. (Dkt. 4-5 (Preliminary Hearing Transcript), 57:10-58:3). The court overruled the demurrer, finding that probable cause existed to show Plaintiff committed a crime. (Id. 58:23-59:1; Dkt. 4-6 (Preliminary Hearing Bind Over Order in No. CF-2014-178)).

         Plaintiff's counsel then filed a Demurrer and Motion to Quash Information, arguing the prosecution had provided insufficient evidence to prove Plaintiff committed the charged offense of concealing stolen property. (Dkt. 4-8 (Demurrer and Motion to Quash Information in No. CF-2014-178)). Plaintiff's counsel thereafter filed a Motion to Suppress and Quash Information, seeking suppression of the evidence seized pursuant to the traffic stop and statements obtained by the arresting officer. (Dkt. 4-9 (Defendant's Motion to Suppress and Quash Information in No. CF-2014-178)). The District Court overruled both motions. (Dkt. 4-10 (Order Overruling Defendant's Motions in No. CF-2014-178)). However, the District Court then reversed course and sustained the Demurrer and Motion to Quash Information, vacating the previous order overruling the demurrer. (Dkt. 4-11 (Order Sustaining Defendant's Demurrer and Motion to Quash Information in No. CF-2014-178)). There is no record to explain why the trial court reconsidered its previous order overruling Plaintiff's demurrer.

         In this case, Plaintiff brings claims for malicious prosecution and false arrest against Orscheln and Benedict. Plaintiff alleges Benedict's “without a doubt” statements regarding the tires led directly to Plaintiff's arrest and prosecution, even though Benedict knew or should have known that his statements were either false or unverifiable. (Dkt. 2-2, ¶¶ 22-23). Plaintiff contends Benedict knew, given the circumstances, that his statements about the tires were important and could lead to Plaintiff's arrest and prosecution for stealing the tires. (Id. ¶ 24). Plaintiff further alleges Orscheln is responsible for Benedict's statements under a respondeat superior theory. (Id. ¶¶ 26-27).

         Orscheln removed Plaintiff's case to this Court on July 31, 2017.[2] Orscheln has now moved to dismiss the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 4). Plaintiff filed a Response in opposition (Dkt. 9), and Orscheln filed a Reply (Dkt. 10). The pending motion is fully briefed and ripe for review.


         I. Standard of Review

         In considering a Rule 12(b)(6) motion, the Court must accept all well-pleaded allegations of the complaint as true, and must construe them in the light most favorable to the plaintiff. See Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1284 (10th Cir. 2008). The Court is limited to consideration of specific allegations of the pleadings, documents attached to the pleadings or incorporated by reference, and documents “central to the plaintiff's claim and referred to into the complaint, ” at least “where the document's authenticity is not in dispute.” Pace v. Swerdlow, 519 F.3d 1067, 1072 (10th Cir. 2008) (quoting Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 1253-54 (10th Cir. 2005) (quotation marks omitted). In addition, the Court may consider matters of public record, such as records from Plaintiff's Wagoner County criminal case (No. CF-2014-178), by taking judicial notice of such documents, without converting the motion to dismiss into a motion for summary judgment. Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).

         Orscheln argues Plaintiff's claims are barred by the doctrine of issue preclusion. Issue preclusion bars “relitigation of factual or legal issues that were decided in a previous case, regardless of whether that case was based on the same cause of action.” Willner v. Budig, 848 F.2d 1032, 1034 (10th Cir. 1988). Issue preclusion is properly applied when (1) the issue to be precluded was actually and necessarily decided in the prior case and (2) the party against whom the doctrine is invoked had a full and fair opportunity in the prior case to litigate the issue to be precluded. Id. (citing Ten Mile Indus. Park v. W. Plains Serv. Corp., 810 F.2d 1518, 1523 (10th Cir. 1987)).

         The party invoking the doctrine bears the burden to show he is entitled to the issue-preclusion defense by including with the motion the judgment record. Salazar v. City of Oklahoma City, Okla., 976 P.2d 1056, 1061-62 (Okla. 1999); 12 Okl. St. ยง 32.1. It appears Orscheln has submitted the entire record from the Wagoner County criminal case against Plaintiff (Dkts. 4-1 to 4-6, 4-8 to 4-11, 10-1, 10-3), and Plaintiff has raised no objection to submission of this record. ...

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